Agenda - Planning Commission - 05/01/2008

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April 25, 2008 I Volume 21 NO.8 . I Finding the original structure "totally demolished," and the work done to be outside of the approved building code and in violation of the city ordinance, the zoning administrator issued a stop work order. Because the city's zoning ordinance provided that if more than 75% of a nonconforming use was demolished, the right of the non- conforming use would end, the zoning administrator directed that new construction be removed. He also ordered any new structure subsequently built comply with new construction setback and lot coverage requirements. The Goyonagas filed an appeal of the stop work order with the city's zoning board of appeals (the board). They argued that since the reconstruction would put the exterior walls back in the same place that the variance had already permitted, a home built within those setback limits should be treated as a conforming use of the proper- ty. The board denied the appeal; finding the total demolition of the building nullified the variance. The Goyonagas asked the circuit court to find the board's decision was in error. They also asked the court to find that as a result of the building plans being approved by the city zoning and building officials, the Goyonagas had acquired a vested right to continue the nonconforming use of the property. The court affirmed the board's decision. The Goyonagas appealed. DECISION: Affirmed. The Supreme Court of Virginia concluded that the demolition of the Goyonagas' entire home, except for portions of the foundation, resulted in their loss of the right to continue the nonconforming use of the property. The Goyonagas had argued that because the variance had "estab- lished new zoning regulations" specific to their property, the property should be treated as a conforming property subject to the limitations of the variance. The court disagreed. The court said the Goyonagas mischaracterized the purpose of a variance. In their case, the purpose of the variance was to permit them to improve and extend their home within the existing nonconforming side yard setbacks, despite the nonconforming use of their property under the zoning ordinance. The court found that the variance issued to the Goyonagas to en- large and extend their home did not relieve them from having to com- ply with other aspects of the zoning ordinance that were not directly addressed by the application for variance, as approved by the board. For example, the court noted their variance did not permit an increase in the maximum lot coverage limitations of a structure in their zon- ing district. The Goyonagas could not challenge the city's requirement that they reduce the length of the addition to their home by four feet, even thought addition was within setbacks allowed by the variance. 3 33